Management company service fees case & set aside *Success*

[andydd]

Yes adding on the extra £650 does sound iffy, obviously it would be payable IF he court judgment said so, but I assume it made no mention of costs ? If it was on small claims track costs would be very limited and wouldnt be that high.

 

Otherwise though costs can sometimes be recouped 'through the back door' (as described at the recent Federation of residents AGM), this is where the lease allows costs to be recouped via the service charge (although this often ends in the wierd situation that ALL the flat owners have to pay despite money only owned by 1 person, i.e say for example you lived in block of ten flats, they would pay £65 each!), or the lease allows admin charges to be recouped from a single leaseholder.

 

Both the above examples may not be in the lease though, you'll have to read it, they are more common in newer leases, and as I pointed out can be challanged if lease doesnt allow, if no summary of rights sent and even then challanged for reasonableness.

 

Most leases to however allow legal costs for a s146/forfeiture to be recovered, some landlords get sneaky and half follow the s146 process (but never really intending to forfeit) just as an exuse to get costs...in theory this is why they apprioach mortgage company and why they often pay up as they are worried they might lose their loan security (i.e your flat).

 

It could be argued in your case, that they have simply won a money claim and this does not effect the security of your flat at all.

 

Andy

[sick.as.a.chip]

Thanks Andy. How do I go about getting a fresh copy of my lease from them? Do I just need to write to them?

[andydd]

You should have a copy of the lease as it is the 'contract' between you, whilst the management company/freeholder should have a copy I doubt they have to provide you with a copy but it may be used it as evidence in lvt/court in which case you would be sent a copy or you should be able to get a copy from your original solicitor/conveyancer or failing that from land registry (http://www.landregistry.gov.uk/public/faqs/how-can-i-get-a-copyies-of-deeds), some basic stuff is avilaible electronically but for leases you have to request a copy, its about £12, I had to get a copy of a deed of variation a while back (which changes the lease), this was ultimately great news for me, as it proved the freeholder had been overcharging ground rent and later in court I got over a grand back

 

Andy

[sick.as.a.chip]

Hi Andy,Ive been through the title deeds and there is nothing on there so it must be in the restrictive covenants that we have to pay the service charge (and they are at home) I have however had a look again at the request for the judgement to be paid by our mortgage company and it is a SECTION 121 LAW OF PROPERTY ACT NOTICE.They have hand written on the bottom of a statement the "£650 costs in relation of the preperation of this notice"They have written on the notice "by terms of the transcfer dates XXXXX the transferee covenanted with the transferor to pay a fixed and variable rentcharge"Even more confused now!

[sick.as.a.chip]

Ok got my lease. It states 'the costs incurred by the management company in the recovery of any arrears of maintenance charge whether as a result of court proceedings or otherwise'

[andydd]

Its ok Ive edited your post.

 

Ok, so that clause does sound like they can recoup legal fees, lucky my lease has no such clause.

 

What is the wording before that, what is the description of management charge ?. Is it split by number of flats ?. I.e there are tens flats so it says you pay 10% each.

 

Err..yes Im confused by your post #29 too... I dont understand S121 at all and have never seen it mentioned in leasehold issues before, I'm not sure your issue is a standard leasehold one.

 

I can see its mentioned in this thread here > http://www.consumeractiongroup.co.uk/forum/showthread.php?320497-MORGED-ESTATE-Ltd-ground-rent-advice-needed. where I commented but I didnt understand it then !

 

Andy

[sick.as.a.chip]

Hi Andy, I got that from the "Transfer of part of Registered Title TP1" when we bought the house.Just to clarify that the house is freehold but the garage is lease hold and the whole estate pays a management charge. This is common on the new build sites built by Taylor Wimpey in my area. The garage that comes with the plot has an apartment built above which is why it is leasehold but I have no record of who owns the lease - presumably it is still the builder. So mine is not a standard anything and probable why it is so confusing!

[andydd]

It appear to me that if the house is freehold tyen most of the leasehold laws dont apply and as for the garage Im unsure as most laws relate to buildings and property.

 

It may be that you just have to rely on pure contract law, i.e the management contract between you and estate management charge.

 

Andy

[sick.as.a.chip]

Thanks Andy. Know its very confusing! Just have to keep my fingers crossed for the set aside and then I'll ask them to produce a copy of the lease / agreement they have based there claim on! Appreciate your help tho!

[bazaar]

Thanks Andy. Know its very confusing! Just have to keep my fingers crossed for the set aside and then I'll ask them to produce a copy of the lease / agreement they have based there claim on! Appreciate your help tho!

 

Hi, I am in touch with quite a few people over these same issues, threats etc. If the company hasnt carried out work according to your Deed of Covenant, which I think you may have, then you dispute it. They have to prove that they carried out the work in accordance with the specified contract.

[sick.as.a.chip]

Hi I'm after some help please and not sure I'm posted in the right forum.

 

I have a set aside hearing due on the 17th December and just would like some help as to what to expect.

 

The claimant can attend by telephone but as this has been transfered to my local court we are required to attend.

 

This is for a ccj that was issued against us for service charges on our housing estate!

[ims21]

For a CCJ set-aside you'll get more help in the Legal forum so I have moved your thread there

[AndyOrch]

Hi Sick as a chip

 

Was the initial claim not defended? Default Judgment.?

 

Andy

[sick.as.a.chip]

Hi Andy!

 

Due to a death in the family the defence was signed for at the court 7am the day the judgement was entered.

 

Decided to pay the 80 quid and try for a set aside

 

but now I'm in a mild panic that I've got to go to court!!!

 

No idea what to expect or what will be involved!

 

I've been to small claims once before but as the claimant and it was pretty straight forward case of a bounced cheque!

[dx100uk]

is this to do with

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?352511-management-company-question&p=4055579#post4055579

 

dx

[sick.as.a.chip]

It is yes. Finally worked it all out from what they sent with the paperwork and they have not deducted anything that I have paid. I know we do need to pay it its just the charges I'm objecting to at the moment. If the court allows the set aside I'm going to request a copy of the lease / transfer they quote in the particulars of claim. Its very complicated but I don't know at a set aside hearing how much the judge is going to want to know!

[dx100uk]

ok for sake of back ground info

 

threads merged

 

always best to stick to one thread.

 

dx

[sick.as.a.chip]

Thanks I just thought it was too confusing when I just

Needed to know what happens when I get to court. Just don't want to be caught unawares and have wasted my 80 quid. Its a lot of money!

Thanks

[andydd]

At court you will need to have very good proof of a) Why there was default judgment, why you didnt respond, ill health or not receiving documents b) that you have a very good defence IF the case should go ahead.

 

You cant be over prepared, just get all the relevant details, leases, docs should be available from your solicitor/conveyancer or Land Registry. Dont assume that the Judge will be able to read your mind and see whats wrong, you will have to have good proof,.

 

Make sure all your paperwork is neat and easily understandable and formatted in the correct way (Ive got template/examples you can use if you want).

 

Andy

[sick.as.a.chip]

That would be great Andy if you don't mind! I enclosed a witness statement with my application for a set aside so I will work on beefing that up a bit. I'm assuming that it will only be a very short hearing?

[andydd]

I've PM'ed you.

 

The only experience I have of a set aside, is from the other side, I was opposing claimaints set aside application, their claim was struck out as they didnt pay fee on time, their set aside was dissallowed for lack of evidence/failure to comply with CPR 3.9, their Solicitor simply said 'he was busy due to workload of other cases' but this wasnt good enough for the Judge.

 

They then tried to re-litigate same case which is where I pounced with mu Summary Judgment/Abuse application (this is what Ill send you).

 

Andy

[sick.as.a.chip]

Thanks!

[sick.as.a.chip]

A quick question please.The manageing agents of my development claim that the service charge, reserve fund (neither of which i am disputing) and administration fee's are payable and quote in the POC they are due under the terms of the transfer.

 

My POC are typed below:

 

PARTICULARS OF CLAIM

 

1)The claimant is the management company in respect of the property know as MY HOUSE the interest in respect of which is registered under title number xxxxx at Her magesty's land registry. A copy of the freehold title is attatched.

 

2) The defendants are the current holders of the freehold interest

 

3) Persuant to the terms of the transfer dated XXX 2004 as set out in the property register the claimant is entitled to charge Service and Reserve fund.

 

4) In accordance with the terms of the transfer the claimant issued a proper demand on the defendants via its agenet namely ROBBING GITS for payment of the Service Charge and Reserve fund as circled on the statement of account marked exhibit Blah Blah Blah.

 

5) As Lessee the defendants covenanted to comply with the service charge and reserve fund provisions in the transfer

 

6)The claimant cliams the said service charge and reserve fund charges of £XXX.00 together with the agents administration fees of £83.00 for issuing reminders and final demands for payment.

 

7) The defendant has breached the terms of the transfer by failing to pay the said sums as detailed above in paragraph 6.

 

8) As a result of the breach detailed in paragraph 7 above, the claimant instructed a professional debt collection agency namely XXXX to act on behal of the claimant to collect the outstanding arrears. The claimant has inccured additional asministration fee of £195 attatched herein marked exhibit XXX (A pro-former invoice) which are recoverable from the defendants under the terms of the transfer.

 

9) The claimant has also incurred legal costs which are recoverable from the defendants under the terms of the transfer.AND THE CLAIMANT CLAIMS:

 

1)Judgement for the said service charge of XXXX and Administration fees on £275.00 in the total sum of £XXX.XX

 

2) Contractual costs which are recoverable under the terms of the transfer.

 

MY QUESTION IS SHOULD I REQUEST FROM THEM TODAY THE TERMS THEY ARE REFFERING TO AS I HAVE BEEN THROUGH ALL MY PAPERWORK AND IT IS ALL VERY VAGUE SO THAT I KNOW EXACTLY WHAT I AM UP AGAINST SHOULD THE SET ASIDE GO AHEAD OR WAIT AND REQUEST IT AS IT HAS BEEN NENTIONED IN THE POC BUT NOT SUPPLIED?THEY HAVE ENCLOED A COPY OF THE TITLE DEEDS WHICH MAKE NO MENTION OF A SERVICE CHARGE???

[andydd]

When you say My particulars of claim you mean the above is the POC received from the FH/Management Company ?

 

Well the MA will have to show the court the contract that enables it to charge a service charge (nornally this would be a lease but i believe your position is a bit different in that you own the property freehold but there is still a service charge payable for various items)...but it would be useful for you to see this before court, you could write and ask for it, thyere are provisions in cpr 31.8 and cpr 18 to request docs, although these dont apply to small claims.

 

What is it you dont have ?. The Terms of Transfer ?.

 

Andy

[sick.as.a.chip]

Yes sorry Andy, its the POC from the claimant.I was going to write if my set aside is successful requesting a copy of anything they have that they reffer to in there POC under CPR31.14Documents referred to in statements of case etc.31.14(1) A party may inspect a document mentioned in –(a) a statement of case;(b) a witness statement;© a witness summary; or(d) an affidavit(GL).(e) Revoked.as I have done this before. I've got a copy of the deed which came with the claim but as I have stated it does not mention anything to do with service charges. I'm just wondering if I should ask them to prove it now or wait?Thanks again Andy.